Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. CK10706, Marguerite D. Downing, Judge.
John L. Dodd & Associates and Karen J. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant.
James M. Owens, Assistant County Counsel and Byron G. Shibata, for Plaintiff and Respondent.
Croskey, J.
This appeal is taken from an order in a dependency case (Welf. & Inst. Code, § 300 et seq.), whereby the juvenile court terminated dependency jurisdiction over the legal guardianship of the subject minor child, leaving him in the care of his paternal grandmother, who is his legal guardian. The appellant is Roddy D., Sr. He is the father of the minor child R.D., Jr. (Father and R., respectively). Father contends the trial court abused its discretion in choosing the standard under which dependency jurisdiction could be terminated. Father also contends the evidence does not support a decision to terminate jurisdiction. We find that the court’s choice of standard of review does not require reversal of the order terminating dependency jurisdiction over the legal guardianship, and further find that evidence supports termination. Therefore, the dependency court’s order will be affirmed.
Unless otherwise indicated, all references herein to statutes are to the Welfare and Institutions Code.
BACKGROUND OF THE CASE
1. The Trial Court’s Initial Termination of Dependency Jurisdiction
Eleven-year-old R. was born in March 1998 and detained by the Department a month later. Included among the sustained allegations in the section 300 petition were that R. was born with a positive screen for cocaine and congenital syphilis, and his parents have a history of substance abuse and were incapable of providing him with regular care. His paternal grandmother, JoAnn D. (Grandmother) became his legal guardian in 2000. He has lived with her since he was three weeks old. His mother apparently has not been involved in this case.
Dependency jurisdiction over R. was terminated in January 2001. Father was in state prison at that time. Nothing in the order terminating dependency jurisdiction states that Grandmother was ordered to allow Father to have contacts with the minor. However, a report submitted to the court by the Department of Children and Family Services (the Department) for that January 2001 hearing states Grandmother informed the social worker that Father was making written and telephone contacts with the child.
Section 366.3 provides in relevant part that “[f]ollowing establishment of a legal guardianship, the [juvenile] court may continue jurisdiction over the child as a dependent child of the juvenile court or may terminate its dependency jurisdiction and retain jurisdiction over the child as a ward of the legal guardianship, as authorized by Section 366.4. If, however, a relative of the child is appointed the legal guardian of the child and the child has been placed with the relative for at least 12 months, the court shall, except if the relative guardian objects, or upon a finding of exceptional circumstances, terminate its dependency jurisdiction and retain jurisdiction over the child as a ward of the guardianship, as authorized by Section 366.4.”
2. Father’s Initial Section 388 Petition
In November 2007, Father filed a section 388 petition concerning the legal guardianship. He asserted Grandmother was violating a court order by resisting his efforts to have phone calls and visits with the minor, and he “ha[d] been unable to properly communicate with [R.] for almost 10 years.” He stated R. told him that he would like to spend more time alone on outings with Father. Father attached papers showing he had joint legal custody and visitation rights to his one-year-old son (R.’s half-brother), and he completed 30 hours of parenting classes in July 2007. He stated he completed all of the drug screenings, all were negative,” and he had been clean from drugs and alcohol for two years.
California Rules of Court, rule 5.740 (c) provides that by following the provisions in rule 5.570 regarding petitions brought under sections 388 and 778, a petition may be filed to terminate a guardianship, appoint a successor guardian, or modify or supplement orders concerning a guardianship.
A hearing on Father’s section 388 petition was set. The Department’s report for the hearing states Father told the social worker that Grandmother rarely permits him to visit with R., is overprotective of the child, and has taught the child to call her “mom” and her significant other “dad.” Grandmother told the social worker she does not believe Father can adequately parent R. She stated Father has had four automobile accidents in one month and she fears Father may be involved in staging accidents for false insurance claims. She asserted Father does not live at the address he put on his petition, which is his stepmother’s address, but rather he lives with his girlfriend, who is the mother of his son with whom he shares legal custody. Grandmother stated she believes the girlfriend is mentally unstable and a drug addict and has had several involuntary psychiatric hospitalizations. Grandmother acknowledged that although there is friction between her and Father, R. has a need for connection with Father and there should be regular visits between them, but Grandmother stated the visits should be monitored and Father should not transport the child.
3. Resumption of Dependency Jurisdiction
a. Visitation Matters
The trial court resumed dependency jurisdiction over R. On March 3, 2008, it granted Father’s section 388 petition, ordered permanent placement services, and ordered that Father have visits with the child twice a week, the visits be monitored by someone approved by the Department, the Department have discretion to liberalize visits, and the Department assist in preparing a visitation schedule.
At a Team Decision Meeting (TDM) held on March 21, 2008, Grandmother agreed that Father could call R. on Mondays and Wednesdays between 7:00 p.m. and 7:15 p.m. and on Saturdays between 11:00 a.m. and 11:15 a.m. She also agreed that Father would have visits on Tuesdays and Fridays from 4:00 p.m. to 5:00 p.m. Visits were held on March 21 and 28 and April 8. Father cancelled visits on March 25 and on April 1, 4, 11 and 15. Other visits were sometimes cancelled by Father from time to time before this appeal was filed, including one scheduled for May 30, 2008, for which the social worker received a phone call informing her that Father would not keep the visit because he was arrested. (He was arrested on May 7 and 30, 2008 for making criminal threats.)
During the following months there were ongoing issues between Grandmother and Father over Father’s phone calls and visits with R. Grandmother grew impatient with the disruptions in her life caused by the need to facilitate the calls and visits, and by Father’s cancelling visits. At times she thwarted Father’s contacts with R., and she became obstinate with the social worker over visitation and attempted to thwart the worker’s efforts to facilitate visits.
At an August 2008 review hearing, the Department was directed to assess Father’s residence and members of Father’s household, and was given discretion to permit overnight and weekend visits. A September 2008 report states that when R. was asked how he felt about having unmonitored visits with Father and living with Father, the minor indicated he would like both. The social worker asked Father and his female companion (the mother of his other child) to complete an on demand drug test. They were compliant and the tests were negative for drugs and alcohol. Father indicated he would like unmonitored visits and would like to have R. in his care. Live scanning on the female companion, L.S., showed she was convicted of disorderly conduct/solicitation of a lewd act in 1986; and making threats with intent to terrorize and battery in 1998. Live scanning on Father showed he was convicted of shooting at an inhabited dwelling/vehicle/etc. in 1985; disrupting school activities in 1985; violating parole on the 1985 conviction in 1987; second degree robbery in 1989; giving a false identification to a peace officer in 1991; possession of a controlled substance in 1993; possession of a controlled substance in 1996; inflicting bodily injury on a spouse/cohabitant in 1998; and petty theft in 1999. He was sentenced to six years in prison on the latter charge.
On September 15, 2008, the court modified Father’s visits to unmonitored visits three times a week and gave the Department discretion to liberalize. The order was later modified to permit Father to pickup R. after school for visits and to attend school IEP (Individualized Education Program) meetings and events. Father was also ordered to give Grandmother 24 hours notice when he had to cancel a visit.
The record reflects that Father was not always appropriate when visiting the minor. The monitors reported that at times Father would give R. mini lectures and be controlling in his conversations with the child. Additionally, Father (1) called the child a wimp and asked him why he acts like a punk; (2) told R. that this case is in court because Grandmother is trying to keep R. and Father apart; (3) stated, at the beginning of a visit, that he and R. would not “be here” if Grandmother had not lied; (4) told R. that Grandmother only cares for R. for the money; (5) told R. that it is Grandmother’s fault that things are as they are; and (6) told R. that R.’s mother used drugs and so the minor was exposed to drugs at birth and this is the cause of the minor’s poor behavior and the behavior is something R. cannot help. R. began using the “information” about his mother’s drug use as an excuse when he misbehaved, and would also tell Grandmother that it is her fault that things are the way they are, and that Father says she is only in it for the money.
b. R.’s Medical and Emotional Needs
The Department had problems persuading Grandmother to make and keep medical appointments for R. A report dated August 29, 2008 states she refused to give the social worker information on R.’s medical and dental history, and although the child was referred to a community mental health center by the social worker, Grandmother told the worker she did not believe the child needed therapy and she had not taken him there because she was sick. The report states that since the minor transferred schools, there was a significant increase in his behavior problems and his principal reported he is constantly in trouble. Father acknowledged that the child had issues and needed therapy, and Father continuously expressed his desire to have the child live with him. At the August 2008 review hearing, the court set an order to show cause hearing regarding Grandmother’s failure to comply with court orders. The court ordered her to sign medical and dental releases for the minor, ordered that the child have a mental health assessment and an IEP assessment, and ordered that Father could participate in the minor’s IEP and other appointments.
A September 15, 2008 report from the Department states Grandmother was not compliant with any court orders, and on two occasions in September, she yelled at the social worker on the telephone, once calling the worker a liar and the other time telling the worker to stop bothering her. R. reported to the worker that he had never been to see a dentist but he did see a doctor the preceding year. Asked if he had been to see a therapist, he stated Grandmother “is supposed to make me an appointment one day.” On September 15, 2008, the court authorized Father to take R. to the minor’s doctor and therapy appointments and follow up on them. Grandmother was ordered to provide the Department with the child’s current medical, dental and school records and to authorize R.’s school to provide the Department with information regarding his grades and attendance.
An October 2008 report shows that after the September 2008 hearing, Grandmother scheduled several doctor visits for R. but kept none of them, telling the social worker that the child was sick on the day of one of the appointments, and she “fell asleep on the couch” on the days of the others. The social worker scheduled an appointment for the minor and Father stated he would take the child to the doctor for that appointment. Because of Grandmother’s refusal on several occasions to take R. for a mental health assessment, Father scheduled the appointment and kept it. The assessment determined R. is in need of treatment, and so two appointments were made for November 2008. Father took the child to the dentist and the dentist reported the child has gingivitis because a buildup of plaque on his teeth caused his gums to become infected.
5. Father’s Second Section 388 Petition
a. Father’s Petition
On January 6, 2009, Father filed a second section 388 petition, seeking to have Grandmother’s legal guardianship of R. terminated and a home of parent order made for Father. Father asserted that the friction between him and Grandmother has an adverse effect on his relationship with the minor, and moreover, Grandmother had at least once indicated a desire to have the minor removed from her care, she had not been consistent with the child’s medical and dental care whereas Father took the initiative to become involved in the minor’s life, including health care and school matters, and father and son visit regularly and have a strong bond. A hearing on the petition was set.
b. Grandmother’s Declaration
Submitted with Grandmother’s opposition to the section 388 petition was her own declaration wherein she stated the following. She and her significant other of 28 years have been R.’s parents in every way ever since the minor moved into their home when he was three weeks old. She chose to be the child’s legal guardian rather than adopt him because she hoped that Father would “straighten himself out and become an appropriate parent” to R. When the minor was in second grade he began to have outbursts at school, disrupting the class. She took him to a therapist, followed up on the treatment and medication that was recommended, attended the minor’s IEP’s and followed through on the school’s recommendations, and when the minor was in third grade, one of his outbursts elevated to the point that he had to be hospitalized at Kedren Hospital for a month. She visited him there every day and after his release he was provided with a one-on-one attendant at school.
In her declaration Grandmother stated that there was a time when Father would have lengthy visits with R. at her house (6-8 hours long), and Father would bring his girlfriend and their son too, and Grandmother would prepare meals for them. However, when she told Father that the visits needed to be shorter so that she would have time to do what she needed to do, Father brought the issue of visitation to the court by his initial section 388 petition. Grandmother stated that Father lives in a one bedroom apartment with his girlfriend and their two-year-old son, and the girlfriend pays all the living expenses for the three of them with government assistance money that she has sent to another address because Father lives with her which is not permitted while she receives government assistance. The girlfriend has informed Grandmother that Father is not looking for a job and does not want a job. Grandmother is concerned that at least a part of Father’s motivation for requesting a home of parent order for R. is that he may receive public funds if the child is in his care.
Grandmother’s declaration states that Father and his girlfriend fight, including when R. is at their home, and the police are called because of their arguments. Grandmother stated that her daughter (Father’s sister) was at their home in late November 2008 when Father and the girlfriend were arguing and R. was there too. The daughter told Grandmother that R. put himself into the confrontation and Father did not stop the minor. When the police were called, R. told them that Father had done nothing wrong and the police arrested the girlfriend. Against Father’s directive, R. told Grandmother about this incident. The girlfriend called Grandmother from jail, confirmed the story, and told Grandmother she did not want R. to come to her home. Several weeks later the girlfriend told Grandmother she would “evict” Father from her home.
Grandmother also stated in her declaration that after a TDM held in January 2009, Father cancelled his visits with R. and told the child that there was a change in visitation and it was Grandmother’s fault. Father did not attend R.’s December 2008 IEP meeting, and he has never attended conferences and programs at R.’s school except for one time when, according to R., Father identified himself to school faculty as a member of the staff so that he could be served cookies intended for staff. Since R. began visiting with Father, there have been complaints from the school about the minor’s attitude, including his cussing at teachers. Father’s visits have been inconsistent, including no-shows, changes in times, and last minute changes in pick up and drop off locations, and the minor returns home from the visits hungry, and complaining of headaches and diarrhea. For Christmas 2008, Father gave R. a small, donated toy and bought a plasma television for himself.
c. The Department’s Ex Parte Application and Reports
In February 2009 the Department submitted an ex parte application asking the court to order that Father’s future visits be monitored. The application notes that several times the police have been called to the home that Father and his girlfriend share, and that Grandmother told the social worker R. has stated to her that he is afraid during the altercations. The report notes there have been at least four family TDM’s since November 2007 when Father filed his initial section 388 petition. It states R. is “rather fragile,” and after Father’s visits became unmonitored, there was a day when the minor had to be taken from school and placed in a psychiatric hospital. He was released at the end of the day. The social worker indicated R. should be settled in therapy and have a favorable report from his therapist before Father is permitted to have unmonitored visits. On February 6, 2000, the court ordered monitored visits, and ordered the Department to interview R., his one-on-one school assistant, his therapist, the school principal, and Father. The Department was also ordered to secure arrest reports of domestic incidents at Father’s residence.
Thereafter, the Department submitted two reports—one for the hearing on Father’s section 388 petition and the other for a status review hearing. Both hearings were set for March 16, 2009. In its section 388 report, the Department recommended that the minor remain in Grandmother’s care. The report states that after the court issued an order in September 2008 permitting Father to have unmonitored visits, conflicts between Father and Grandmother “were rampant” and several TDM’s were held to “clarify the visits.” Also, the Department began receiving reports that the police were being called frequently to Father’s address for loud arguments between him and his girlfriend. The girlfriend alleged Father was using drugs but she later retracted the allegation. The Department concluded that although there are some areas of Grandmother’s care of the minor that need improvement, specifically those involving services that the minor needs, the minor’s home is safe, whereas Father’s residence is not safe because of the volatile situation between Father and his girlfriend.
The report for the status review hearing states that neither Grandmother nor Father took R. to the follow up therapy appointments in November 2008 that were scheduled for him at Kedren Hospital. The minor began therapy at school but there had only been three sessions to date. The child’s November 2008 IEP states he has great difficulty following directions and maintaining focus, and his extensive behavior problems also interfere with his learning. However, it notes that his behavior in the new school year had improved over what it had been in years past. Nevertheless, on December 10, 2008, R.’s behavior reverted to how it had been in the 2007 2008 school year, he became violent and defiant, and school police were called because he posed a danger to himself and others. R. was given a one-day suspension. R.’s acting out at school includes cursing the teachers, making obscene comments of a sexual nature, and being aggressive and disruptive in class. The teachers reported the minor’s behavior had not worsened since R. began visiting Father.
One of the attachments to the Department’s report is a “screener information” form on which is stated that a referral dated June 5, 2008 contains the following information. A “caller” reported that R. is an alleged victim of sexual abuse by an unknown perpetrator and is also at risk of general neglect in his home with Grandmother. The form also states that the caller related that R. was acting out sexually in class and the school bathroom, including pulling down his pants to show his private parts to other students and making sexually explicit statements.
The status review report adds that this case is “the most time and work intensive case in the [social worker’s] unit” even though there are no allegations of abuse or neglect, and the social worker or her supervisor are on the telephone with Father and/or Grandmother at least once a day, and often two or three times a day. The report reiterates that there have been at least four TDM’s for the case since Father filed his initial section 388 petition, and “[t]he facilitators of these meetings voice their amazement at the disrespect shown to the legal guardian in these meetings.” (Apparently the social worker had reference to Father’s conduct at the meetings.) The social worker stated that nevertheless, the staff recognizes that children need contact with their fathers if it can be safe, and R. wants contact with Father, and so the staff makes every effort to facilitate visits between them.
The report goes on to state that Grandmother told the social worker that after Father was released from prison, she permitted him and his girlfriend and child to visit R. at her home until he became verbally abusive and physically aggressive (he knocked over a fan) and she told him not to come back to her home. The report states the Department received information from the police that shows they were called to the girlfriend’s and Father’s home at least five times between May and December 2008, usually for loud altercations between them, and sometimes for allegations of domestic violence and criminal threats.
The social worker indicated the Department would like to stop Father’s visits but knows the minor needs the contacts even though Father does not interface appropriately with R. in terms of what he discusses with the child, and the Department would like to have the court terminate dependency jurisdiction but then the Department would not be able to keep pressure on Grandmother to provide R. with the mental health services he needs. The Department recommended that the child remain a dependent of the court, have monitored visits with Father once a week and telephone contact twice weekly, Father not discuss case matters with the child, and R. continue his therapy at school, resume counseling at Kedren, and attend school regularly.
There are attachments to the Department’s report. One attachment appears to be from a diary maintained by Father wherein he stated he was informed by personnel at R.’s school that the child was absent from school 22 days between September and December. However, a record from the minor’s school shows that from September through December, R. was absent 14 times, and five of those absences were because his one-on-one attendant did not go to school. (R. has an attendant both for his bus trips to and from school and for his classes at school.) Of the other nine absences, one was for a court date, one was a day R. was suspended, two were days he was kept home for illness, one day Grandmother just kept him home, on one day he had a dental appointment, and there were three absences marked “no note.”
Documentation of a January 2009 visit between Father and R., written by the monitor, states that Father began the visit by talking about the case. When the monitor informed Father he could not discuss the case with R., Father replied he could discuss anything he wants with the child. When Father continued to argue with the monitor, she called security to escort Father out and R. asked Father if he could “just change the subject.”
Another attachment to the Department’s report states that when the social worker spoke with the assistant principal at the school R. attends, the assistant principal told her that the child’s behavior has gotten progressively worse since he began visiting with Father. On that same visit to the school, when the social worker told R. that she would take him to his visit with Father, R. had a temper tantrum, fell to the ground, and was kicking, screaming, yelling and cursing. His one-on-one assistant stated R. had several such tantrums on the field trip from which he was returning, and had also tried to fight with his peers, and on the bus returning to school after the field trip, R. displayed similar behavior. The assistant stated the behavior was unprovoked. The social worker asked R. several times if he wanted her to take him to his visit with Father but the child did not respond, and as it was getting late, the social worker indicated she would leave him at school and he could take the school bus home and she would let Father know that the visit was cancelled and R. would see Father at the next visit. R. shook his head that was all right with him. That was on March 3, 2009. Ten days later, the assistant principal reported that the minor had a “major meltdown” at school, cursing school staff and his classmates, yelling at neighbors who live by the school that they should help him because he was being abused, and refusing to go back to class.
Attachments to the report include police reports for May 15, May 26 and November 29, 2008 wherein the police went to the home of Father and his girlfriend because of reports of arguments between them, a threat by Father against the girlfriend of domestic violence, a report of the girlfriend assaulting a neighbor, and a report by a neighbor that the aggressive behavior between Father and the girlfriend is ongoing and police have been called. The girlfriend was arrested on two occasions, once for assaulting Father and once for assaulting a neighbor.
6. Final Review Hearing
At the hearing on March 16, 2009, the dependency court took up Father’s section 388 petition and the status review of the minor’s permanent plan of legal guardianship. The court admitted into evidence the various reports with attachments, heard argument from counsel, and went off the record to speak to R. in chambers. Father’s attorney asked that the court not terminate dependency jurisdiction, but did not present any argument on the issue, and Grandmother’s attorney asked that jurisdiction be terminated. The court indicated that it initially restored dependency jurisdiction because it did not appear that Father was receiving a “fair shot,” and since that time, the case had been one of “pointing the fingers” and the court “ha[d] spent a great deal of time on th[e] case.” The court stated that it did not always agree with the way Grandmother was raising R. but it was her call since she is the legal guardian, and the court had seen nothing indicating that Grandmother’s home was not safe. The court opined it had given Father “more than the benefit of the doubt in this case,” and based on the evidence it would deny Father’s petition because the continued police presence at Father’s home indicates it is not a safe place for R. to live. The court granted the Department’s request for visits to be monitored because of the safety concerns at Father’s home. After finding that the child is in the best place for him to be at that point in time, the court terminated dependency jurisdiction.
CONTENTIONS ON APPEAL
Father contends the trial court abused its discretion in choosing the standard under which dependency jurisdiction could be terminated, and moreover, the evidence does not support a decision to terminate jurisdiction.
DISCUSSION
As noted in footnote 2, ante, after a legal guardianship is established by the juvenile court, the court may choose to continue jurisdiction over the child as a dependent child of the court or may terminate its dependency jurisdiction and retain jurisdiction over the child as a ward of the legal guardianship. (§ 366.3.) Rule 5.740(a)(3) provides a similar directive. It states: “When a legal guardianship is granted, the court may continue dependency jurisdiction if it is in the best interest of the child, or the court may terminate dependency jurisdiction and retain jurisdiction over the child as a ward of the guardianship.” Section 366.3 adds the directive that if “a relative of the child is appointed the legal guardian of the child and the child has been placed with the relative for at least 12 months, the court shall, except if the relative guardian objects, or upon a finding of exceptional circumstances, terminate its dependency jurisdiction and retain jurisdiction over the child as a ward of the guardianship.” (Italics added.)
Guardianships are not necessarily perfect arrangements. Although a guardianship may not be ideal, or even close to ideal, section 366.3 provides that there must be an exceptional situation for a court to retain dependency jurisdiction over the child after 12 months of guardianship when the guardian is a relative. That requires a court to look at the whole picture of the child’s situation.
Here, Grandmother’s care of R. obviously needed improvement. The child’s dental care was apparently nonexistent in terms of seeing a dentist, and far below the minimum necessary in terms of home dental care, such that things had progressed to the point of his having infected gums. Further, despite the intense behavior/emotional problems that R. was having at school, Grandmother was resistant to taking him to therapy. Even with a year of resumed dependency jurisdiction over this case, with its many directives by the court and social worker to Grandmother to address R.’s health and emotional needs, in the end it was Father who took the child to the doctor and dentist, and to the therapist for an assessment. Unfortunately for R. however, thereafter, neither Grandmother nor Father took him to the follow up therapy appointments that were scheduled for him at Kedren Hospital.
Hopefully the dentist’s finding that R. had gingivitis was a wakeup call to Grandmother that routine dental checkups and daily brushing are required for the child’s dental health.
On the positive side, the minor did become involved in counseling with a psychologist at his school. Further, although the assistant principal reported that R.’s behavior became progressively worse after he began seeing Father, Father’s visitation will now, appropriately, be monitored because of the court’s final order. In summarizing R.’s home with Grandmother, the trial court observed that she had raised R. as she thought appropriate and while the court did not always agree with her way of doing things, it was her call, and unlike Father’s living arrangement which put R. at risk of harm, nothing indicated that R. was not safe in her care.
As for Father’s visitation issue, which prompted the court to resume dependency jurisdiction in the first place, it can be said that Father’s disrespectful attitude toward Grandmother did nothing to further her cooperation with his visits, and given that Father and she continued to have ongoing problems with visitation long after jurisdiction was resumed, there is no clear evidence that after termination of dependency jurisdiction in March 2009, the visitation issues in this case would be any worse than they were prior to termination of jurisdiction. Indeed, once the court resumed jurisdiction in March 2008, the case and the lives of R., Grandmother and Father took on a heightened sense of anger, hostility, and anxiousness, as evidenced by the social worker’s report that the Department was receiving phone calls from Father and/or Grandmother at least once every day, and the Department had to call several TDM’s to deal with the issues that arose. Stability that had been present in R.’s life prior to resumption of dependency jurisdiction was impacted because those negative emotions affected him as well as Father and Grandmother. Termination of jurisdiction may help restore the more stable, peaceful home life that he had, and hopefully he will “unlearn” the disrespectful attitude towards Grandmother that he copied from Father.
From the evidence one could reasonably conclude that Father’s relationship with Grandmother and his quest for regular visits with the minor were negatively impacted by his (1) disrespect for Grandmother at the TDM’s, and disrespect for her in his remarks to R., (2) disrespect for her efforts to provide him with visitation both prior to and after he brought his initial section 388 petition in November 2007, and (3) apparent lack of gratitude to her for what she has done for R. since the child was born. It was Grandmother who stepped up to the plate and raised R. for Father because Father was not there for the child. It is not unreasonable to believe that if Father were to improve his attitude toward Grandmother and meet her at least half way on visitation issues, the issues could be resolved with some effort, something a year’s worth of resumed dependency oversight had not achieved.
The record reflects that the dependency court resumed dependency jurisdiction because it did not appear to the court that Father was receiving “a fair shot.” After jurisdiction was resumed, the court found it became “a case of pointing fingers,” and the court opined it had given Father “more than the benefit of the doubt.” The court concluded that because R. was in the “best place he can be at the present time” dependency jurisdiction would be terminated again.
We find that the court’s analysis of the case is sufficient to constitute an analysis of whether there were “exceptional circumstances” to justify not terminating dependency jurisdiction, and we further find that the evidence would support a finding of no exceptional circumstances requiring retention of jurisdiction. R. was having therapy at his school, he had made the necessary visits to his doctor and dentist, the dentist visit had demonstrated to Grandmother the necessity of vigilant health care for R., and the future success of Father’s visits was in large part in his own hands. Moreover, dependency jurisdiction can be resumed again if necessary. Thus, on balance, there are no exceptional circumstances to warrant retaining dependency jurisdiction.
We do not agree with Father’s assertion that the order terminating jurisdiction must be reversed because the trial court used the wrong standard when it decided whether jurisdiction should be terminated. At the final hearing, after the court denied Father’s section 388 petition to terminate the guardianship and place R. in Father’s care, the court directed its comments to reviewing the permanent plan of guardianship. The court found that legal guardianship is the appropriate plan for the minor. The court further found that “the condition which justified the initial assumption of jurisdiction no longer exists and does not appear likely to exist. So at this time, supervision of this minor is terminated, and the case is closed once again.” (Italics added.)
Citing the directive in rule 5.740 (a) (3) that when the child’s permanent plan is a legal guardianship the court may continue dependency jurisdiction if it is in the best interest of the child, or terminate dependency jurisdiction and retain jurisdiction over the child as a ward of the guardianship, Father contends that the question posed by the trial court (whether the condition that justified taking jurisdiction in the first place still exists) is not the question to ask when determining whether to terminate dependency jurisdiction. Therefore, asserts Father, the court abused its discretion when it asked that question and the order terminating jurisdiction must be reversed and the trial court directed to determine whether the best interests of R. would be served by terminating jurisdiction.
We decline to send this case back for a redetermination. “[A] ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for a wrong reason. If right upon any theory of the law applicable to the case, it must be sustained regardless of the considerations which may have moved the trial court to its conclusion.” (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 19, disapproved on another point in Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 944; In re Sarah M. (1991) 233 Cal.App.3d 1486, 1494-1495, disapproved on another point in In re Chantal S. (1996) 13 Cal.4th 196, 204). In Sarah M., the dependency court applied the wrong standard of review when it terminated jurisdiction after it had successfully placed the minor child with her formerly noncustodial parent. The reviewing court held there was no need to send the case back for rehearing because the evidence showed there was no need for the dependency court’s continued supervision. As already discussed, section 366.3 asks the question whether there are any exceptional circumstances that would justify not terminating dependency jurisdiction, and we have determined that the evidence before the trial court, when viewed as a whole, would support a finding of no exceptional circumstances.
DISPOSITION
The order from which Father has appealed is affirmed.
We Concur: Klein, P. J., Aldrich, J.
Section 366.4 provides that a minor who is placed in a legal guardianship as a permanent plan under section 366.26 “is within the jurisdiction of the juvenile court,” and for such minors, “Part 2 (commencing with Section 1500) of Division 4 of the Probate Code, relating to guardianship, shall not apply.”
All references herein to rules are to the California Rules of Court.